Could the ‘Torture Report’ help spare the Guantanamo defendants?

Defense attorneys in Guantanamo Bay, Cuba, are eagerly awaiting the release of a Senate Intelligence Committee report on the CIA’s post-9/11 interrogation program, hoping its revelations will help the accused terrorists they represent at military commissions on the island.

President Barack Obama said bluntly earlier this month that the CIA “tortured some folks,” and the long-awaited report is expected to describe that torture in detail. That could be good news for the five men accused of plotting the 9/11 attacks and one accused of the USS Cole bombing. All have been in pretrial proceedings for years now at Guantanamo and were in CIA custody before that.

“It’s going to have an effect on the way everything is perceived,” said James Harrington, who is representing accused 9/11 plotter Ramzi Binalshibh. 

The Guantanamo prosecution team decided back in 2006 not to use any evidence obtained while the detainees were in CIA custody and subjected to “enhanced interrogation techniques” like waterboarding. They believed they had enough evidence from other sources, including statements the detainees made to the FBI’s “clean team” of interrogators, who questioned the detainees — without the use of methods that meet international definitions of torture — after they were moved from secret "black sites" in foreign countries to Guantanamo.

But the report’s revelations could call into question the clean team’s findings, the lawyers believe. Harrington said he’s planning to argue that these interviews should be just as inadmissible as the CIA’s findings, since his client was too psychologically damaged by the earlier interrogations to be questioned fairly.

The report could also be useful to the defense if and when the lengthy proceedings — which have been stuck in pretrial motions for more than two years — get to the sentencing stage. Harrington plans to argue that the torture his client suffered is a mitigating circumstance that means he should not be put to death if found guilty.

Having an account of exactly what the CIA learned in its interrogations might also help the men's lawyers “draw a line” around certain pieces of evidence, said Ken Gude, a senior fellow at the left-leaning Center for American Progress think tank. The fact that a detainee said something during CIA custody might make that piece of information suspect even if he repeated it long after the torture had ended.

Attorneys for Abd al Rahim al-Nashiri, who is accused of planning the USS Cole bombing, have already asked the judge for access to the complete report for this very reason. (The judge hasn’t yet ruled on the request.) While the government has admitted that al-Nashiri was waterboarded, the detainee has alleged that he was tortured in more extreme ways not deemed legal by Bush administration lawyers. If the report bears that out, al-Nashiri’s defense team hopes to use it as a shield against capital punishment.

“Putting it bluntly, after the United States tortures a person in violation of international law and domestic law, does the United States then get to kill him?” asked al-Nashiri’s lawyer, Rick Kammen.

The lawyers have been clamoring for the report for months, with little success. It’s not clear when the portions of the 6,200-page report that have been earmarked to be made public will be released. The Senate Intelligence Committee and the CIA have been feuding over redactions ordered by the agency.

Last week, committee chair Dianne Feinstein (D-Calif.) said the CIA’s edits were excessive and urged Obama to help make more of the document public. She also warned that she would not release any part of the report until she was “satisfied that all redactions are appropriate.” The White House had no immediate comment, and officials there declined to comment on the record about the potential impact of the release on any trials.

Not everyone thinks more detail on enhanced interrogation techniques would help the detainees’ cases. “I would be surprised if there’s anything in this report that’s a new revelation that hadn’t already been kind of out there in the public domain,” said Col. Morris Davis, who was chief prosecutor of the commissions before he resigned in 2007. “I don’t think the report will be particularly helpful to the defense.”

But getting the report in the public domain could speed up the interminable proceedings, Senators Carl Levin and Feinstein argued in a letter to Obama in January. The continued classification of the CIA’s interrogation program often pops up as a flashpoint in the commissions, with judges censoring motions and court proceedings that touch on any interrogation techniques that are still considered classified. 

“Much of the delay is related to the continued classification of information concerning the now defunct CIA Detention and Interrogation Program,” the senators wrote to Obama. “The delay is further undermining the reputation of the military commissions with the American public and our friends and allies overseas.” 

When accused 9/11 plotter Walid bin Attash’s attorney, Capt. Michael Schwartz, said in court in May 2012 that his client was tortured by “the men and women wearing the big-boy pants down at the CIA,” he was quickly reprimanded.

“There is certain material that is not to be disclosed in a public forum unless it has been properly cleared,” Judge James Pohl admonished him.

Schwartz retorted that his statement wasn’t classified and charged that the standard for determining what information was being withheld from the public was “embarrassment to the government.”